What are Limited Common Elements? Part Two

Limited common elements: spaces or things?
“Limited common elements” can be spaces or things. Parking spots are an example of “spaces” that are frequently defined as “limited common elements” in an association’s Governing Documents. Parking spaces are essentially blocks of air surrounded by common elements and lines drawn on pavement. In most cases, the boundary of the limited common element is the surface of the pavement, and not the pavement itself.

Similarly, unless your Declaration says otherwise, limited common element balconies and patios are spaces surrounded by common element building components. Most Declarations don’t specify the boundaries of limited common elements. In that case, we will most often apply the boundary of a unit. Thus the boundary of a limited common element balcony is usually the interior of the unfinished surfaces around it. The structure of a balcony, and its handrail, are not a part of the limited common element space.

Windows and doors are examples of things (building components) that can be “limited common elements.” Unless the Declaration specifically provides otherwise, every part of the building components (wires, conduits, windows, etc.) described in RCW 64.34.201(2) and (4) are part of the limited common elements.
The Declaration could provide more things be allocated as limited common elements. Handrails serving decks, and even deck coatings and deck structures could be specifically allocated in the Declaration as limited common elements, but this cannot be done by rule or regulation.

Assessments for the repair, maintenance, and replacement of limited common elements
The exclusive right to use a limited common element is not the same as an obligation to pay for maintenance and repair of the limited common element. In most Declarations, repair costs for limited common elements are a common expense for the association, because repair costs are not specifically assigned as permitted by RCW 64.34.360(3).

Some Declarations may require the owners of assigned units to pay for expenses incurred to repair, maintain, or replace limited common elements. (See Chapter 23, “Cost Allocation: How Are Costs Allocated among Owners?”) Because limited common elements are a subset of common elements, Declarations may impose on individual unit owners assessments for expenses related to the upkeep of limited common elements. Declarations may also require all expenses incurred to repair, maintain, or replace limited common elements to be assessed as expenses that only benefit some owners. The assessments must be imposed in accordance with the terms specified in the association’s Declaration. The Board may have the authority to undertake repairs to and replacement of limited common elements, then bill owners for the costs, but only if this is specified in the Declaration.

Associations may not normally undertake repairs, maintenance, or replacement of building components located within the unit boundaries since these are not “common elements” or “limited common elements.” Expenses related to the upkeep of these items are the sole responsibility of the individual unit owner. Building components that are outside the unit boundary, and not defined as limited common elements, will be assessed as a common expense. No Washington court has addressed this specific question, but case law from other states provides some insight into the reasoning that may be applied. In Cedar Cove Efficiency, the court held that an association was “obligated to provide repair and maintenance [to doors and balconies] as the board may deem appropriate” when the declaration was inconsistent with respect to whether doors and balconies were “limited common elements” or fixtures within the vertical boundaries of a unit. Since the Governing Documents did not specify how expenses for limited common elements would be assessed and limited common elements constituted a subset of common elements, the court held that the association had the authority to assess all owners for the costs of repairs to balconies that it deemed necessary to the structural integrity of the building.

Feel free to leave a comment or contact us directly if you have questions.

What are Limited Common Elements? Part One

Under the New Act (RCW 64.34 et seq., Washington’s Condominium Act) and Old Act (RCW 64.32 et seq., the Horizontal Property Regimes Act), limited common elements or areas are defined as a subset of common elements or areas. Specifically, limited common elements are the portion of common elements (owned by everyone) that are designated in…

Smoking: Can an Association Ban Smoking? Part Two

Methods of enacting a no-smoking rule There are three ways we have seen clients enact (or attempt to enact) a no-smoking rule: 1)            Amendment to Declaration/CC&Rs: This method is likely the most difficult and costly way to enact a smoking ban, but it will be given the most deference by courts and be relatively strong…

Smoking: Can an Association Ban Smoking? Part One

An association may enact a rule banning smoking in common areas, and can probably ban it in individual units/homes as well. However, an association must consider several potential risks and benefits before enacting such a rule. We generally treat tobacco, marijuana, and vaping any substance the same way in adopting and enforcing community association rules….

When a Project Manager is Needed

I have never seen a Condo Declaration that required a project manager for any maintenance or repair. But if I were to look, I would look at the maintenance provisions, the authority of the board provisions and the damage and destruction provision. The damage and destruction provision often provides the OPTION of hiring architects and…

Sex Offenders and Criminals: Can They Be Banned by a Community?

Associations generally have the right to regulate their communities. In Washington, this probably includes the right to ban registered sex offenders and other persons with criminal history from living in the community. However, an association’s right to evict existing occupants based on their status as a sex offender is less clear. In addition, associations considering…

Animals: May a Community Ban or Restrict Them?

An Association may ban or restrict animals, if the restriction is: A)   reasonable; B)   enforced uniformly; and C)   included in the governing documents. However, there are some exceptions: Service animals An Association may not ban service animals. A service animal is an animal that is trained for the purpose of assisting or accommodating a disabled…

Costs to Maintain Limited Common Elements Assessed to All Owners

A Washington Appeals court ruled that condos subject to the Horizontal Property Regimes Act (the “Old” condo Act; RCW 64.32) must assess repairs for limited common areas as common expenses against all owners based on their percentage ownership interest. The Act makes no exceptions to that rule. An association had assessed individual owners for repairs…

Procedure Matters

One piece of advice we often give our community association boards is that the procedure used by an association to take any given action is often more susceptible to challenge than the action itself. In other words, how you do things is often easier to attack – successfully – than the actual action taken by…

Invalid Board Does Not Have Authority to Bring Lawsuit on Association’s Behalf

The Appeals Court of Illinois recently held that an association’s board of directors does not have authority to bring a lawsuit on behalf of the association if it is not formed properly according to the condominium’s governing documents and the law. While this case is not binding in Washington, it may indicate how Washington courts…

What are Limited Common Elements? Part Two

Limited common elements: spaces or things?
“Limited common elements” can be spaces or things. Parking spots are an example of “spaces” that are frequently defined as “limited common elements” in an association’s Governing Documents. Parking spaces are essentially blocks of air surrounded by common elements and lines drawn on pavement. In most cases, the boundary of the limited common element is the surface of the pavement, and not the pavement itself.

Similarly, unless your Declaration says otherwise, limited common element balconies and patios are spaces surrounded by common element building components. Most Declarations don’t specify the boundaries of limited common elements. In that case, we will most often apply the boundary of a unit. Thus the boundary of a limited common element balcony is usually the interior of the unfinished surfaces around it. The structure of a balcony, and its handrail, are not a part of the limited common element space.

Windows and doors are examples of things (building components) that can be “limited common elements.” Unless the Declaration specifically provides otherwise, every part of the building components (wires, conduits, windows, etc.) described in RCW 64.34.201(2) and (4) are part of the limited common elements.
The Declaration could provide more things be allocated as limited common elements. Handrails serving decks, and even deck coatings and deck structures could be specifically allocated in the Declaration as limited common elements, but this cannot be done by rule or regulation.

Assessments for the repair, maintenance, and replacement of limited common elements
The exclusive right to use a limited common element is not the same as an obligation to pay for maintenance and repair of the limited common element. In most Declarations, repair costs for limited common elements are a common expense for the association, because repair costs are not specifically assigned as permitted by RCW 64.34.360(3).

Some Declarations may require the owners of assigned units to pay for expenses incurred to repair, maintain, or replace limited common elements. (See Chapter 23, “Cost Allocation: How Are Costs Allocated among Owners?”) Because limited common elements are a subset of common elements, Declarations may impose on individual unit owners assessments for expenses related to the upkeep of limited common elements. Declarations may also require all expenses incurred to repair, maintain, or replace limited common elements to be assessed as expenses that only benefit some owners. The assessments must be imposed in accordance with the terms specified in the association’s Declaration. The Board may have the authority to undertake repairs to and replacement of limited common elements, then bill owners for the costs, but only if this is specified in the Declaration.

Associations may not normally undertake repairs, maintenance, or replacement of building components located within the unit boundaries since these are not “common elements” or “limited common elements.” Expenses related to the upkeep of these items are the sole responsibility of the individual unit owner. Building components that are outside the unit boundary, and not defined as limited common elements, will be assessed as a common expense. No Washington court has addressed this specific question, but case law from other states provides some insight into the reasoning that may be applied. In Cedar Cove Efficiency, the court held that an association was “obligated to provide repair and maintenance [to doors and balconies] as the board may deem appropriate” when the declaration was inconsistent with respect to whether doors and balconies were “limited common elements” or fixtures within the vertical boundaries of a unit. Since the Governing Documents did not specify how expenses for limited common elements would be assessed and limited common elements constituted a subset of common elements, the court held that the association had the authority to assess all owners for the costs of repairs to balconies that it deemed necessary to the structural integrity of the building.

Feel free to leave a comment or contact us directly if you have questions.

What are Limited Common Elements? Part One

Under the New Act (RCW 64.34 et seq., Washington’s Condominium Act) and Old Act (RCW 64.32 et seq., the Horizontal Property Regimes Act), limited common elements or areas are defined as a subset of common elements or areas. Specifically, limited common elements are the portion of common elements (owned by everyone) that are designated in…

Smoking: Can an Association Ban Smoking? Part Two

Methods of enacting a no-smoking rule There are three ways we have seen clients enact (or attempt to enact) a no-smoking rule: 1)            Amendment to Declaration/CC&Rs: This method is likely the most difficult and costly way to enact a smoking ban, but it will be given the most deference by courts and be relatively strong…

Smoking: Can an Association Ban Smoking? Part One

An association may enact a rule banning smoking in common areas, and can probably ban it in individual units/homes as well. However, an association must consider several potential risks and benefits before enacting such a rule. We generally treat tobacco, marijuana, and vaping any substance the same way in adopting and enforcing community association rules….

When a Project Manager is Needed

I have never seen a Condo Declaration that required a project manager for any maintenance or repair. But if I were to look, I would look at the maintenance provisions, the authority of the board provisions and the damage and destruction provision. The damage and destruction provision often provides the OPTION of hiring architects and…

Sex Offenders and Criminals: Can They Be Banned by a Community?

Associations generally have the right to regulate their communities. In Washington, this probably includes the right to ban registered sex offenders and other persons with criminal history from living in the community. However, an association’s right to evict existing occupants based on their status as a sex offender is less clear. In addition, associations considering…

Animals: May a Community Ban or Restrict Them?

An Association may ban or restrict animals, if the restriction is: A)   reasonable; B)   enforced uniformly; and C)   included in the governing documents. However, there are some exceptions: Service animals An Association may not ban service animals. A service animal is an animal that is trained for the purpose of assisting or accommodating a disabled…

Costs to Maintain Limited Common Elements Assessed to All Owners

A Washington Appeals court ruled that condos subject to the Horizontal Property Regimes Act (the “Old” condo Act; RCW 64.32) must assess repairs for limited common areas as common expenses against all owners based on their percentage ownership interest. The Act makes no exceptions to that rule. An association had assessed individual owners for repairs…

Procedure Matters

One piece of advice we often give our community association boards is that the procedure used by an association to take any given action is often more susceptible to challenge than the action itself. In other words, how you do things is often easier to attack – successfully – than the actual action taken by…

Invalid Board Does Not Have Authority to Bring Lawsuit on Association’s Behalf

The Appeals Court of Illinois recently held that an association’s board of directors does not have authority to bring a lawsuit on behalf of the association if it is not formed properly according to the condominium’s governing documents and the law. While this case is not binding in Washington, it may indicate how Washington courts…